Articles on Levi Bellfield published in the Daily Mirror and the Daily Mail have been held to be in contempt of court. The articles in question formed part of an ‘avalanche of publicity’ by both print and broadcast media following Bellfield’s conviction on 23 June 2011 for the murder and kidnapping of Milly Dowler.

Both articles were published whilst the jury was still deliberating on a second charge of the attempted kidnap of Rachel Cowes, then aged 11. The jury was discharged before returning a verdict on the second count, although this is not determinative of the contempt proceedings. Giving the judgment of the court ([2012] EWHC 2029 (Admin)), Sir John Thomas held that the material published by the defendants was highly prejudicial to the count still being considered by the jury and, had the jury not been discharged, would have given rise to a ‘seriously arguable’ point that any conviction was unsafe.

Judgment

Some of the information contained in the articles had already been put before the jury, such as Bellfield’s previous convictions for the murder of Amelie Delagrange & Marsha McDonnell and the attempted murder of Kate Sheedy. However, reference was also made to matters that were not before the jury. In particular, the articles detailed allegations of Bellfield’s sexual interest in, and rape of, young girls and his abusive treatment of two ex-girlfriends: Johanna Collings and Emma Mills. The strict liability rule in s2(2) of the Contempt of Court Act 1981 holds that publications which create “a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced” will be in contempt. Therefore the question was whether the articles published by the defendants created such a risk.

Sir John Thomas stated that, following A-G v MGN[2011] EWHC 2074 (Admin), the test is whether “publication would have given rise to a seriously arguable ground of appeal if the trial had been allowed to continue and proceeded to conviction”. He also made it clear, citing A-G v MGN Ltd [1997] 1 All ER 456 at 460 and A-G v Express Newspapers [2005] EMLR 13, that the issue of risk must be looked at individually in relation to each newspaper article, and the cumulative effect must not be considered.

The relevant issues were summarised as follows:

In light of what was already known by the jury, were the publications capable of creating a substantial risk of serious

Given the media coverage by both print and broadcast outlets could the articles separately give rise to a substantial risk that the course of justice would be seriously prejudiced?

Sir John Thomas then went on to set out the aspects of the newspaper articles that the jury had already been aware of as:

Bellfield’s previous convictions for murder and attempted murder.

Evidence from Joanna Collings and Emma Mills linking Bellfield to the murder of Milly Dowler.

It was noted that, although the jury had heard some evidence from Joanna Collings and Emma Mills, this did not include the allegations of sexual abuse during their relationships with him and his sexual interest in girls. The defendants submitted that the fact that the articles contained information that was not before the jury was not in itself determinative, and that, in light of what the jury already knew about Bellfield the articles:

“… could not have resulted in a substantial risk of serious prejudice to the proceedings. The jury would have disregarded the material and reached their verdict according to the evidence. There was nothing in the material published which was directly relevant to the count of attempted kidnapping that the jury was considering”. [28]

Whilst accepting that the “publication of material that a judge has withheld from the jury does not per se involve a breach of the strict liability rule” [29] Sir John Thomas held that:

“The material in each newspaper was in my view highly prejudicial to Bellfield in that it set out material in relation to his sexual perversion in relation to his partners and his perverted interest in and rape of girls … this material went way beyond what the jury had been told about Bellfield, murderer though they knew him to be and had again found him to be … I am quite satisfied that both the Daily Mail and the Daily Mirror by publishing the further material, particularly that relating to his rape of girls, created a quite separate and distinct risk of serious prejudice”. [33]

Turning to the issue of the effect of previous publicity, Sir John Thomas held that despite the widespread coverage following Bellfield’s conviction for the murder of Milly Dowler, the articles created a further and additional risk of prejudice. It was held that the articles, and in particular the information about Bellfield’s sexual interest in and rape of girls, did “significantly exacerbate the risk of serious prejudice”. [37]

The penalty to be imposed will be decided following submissions from the parties.

Comment

A spokeswoman for Associated Newspapers argued that this was a “wholly exceptional case” in light of what the jury already knew about Bellfield. Given that the jury were aware that Bellfield had been convicted of attempted murder and murder, and had just found him guilty of the murder and kidnap of another young girl could it really be said that the newspaper articles risked prejudicing them further? The newspapers have expressed surprise at the judgment and are reported to be considering appeal.

Contempt of court has been the topic of much debate recently, particularly with regards to the issues raised by social media and the internet more generally. Although this case fits the more traditional model of a contempt case, it does highlight the current Attorney General Dominic Grieve’s apparent enthusiasm for using the Contempt of Court Act to ensure that criminal trials are not prejudiced. Grieve issued a statement welcoming the judgment and said, “This prosecution is a reminder to the press that whilst the jury is still to reach a verdict on all counts of the indictment the Contempt of Court Act applies”. It has been suggested that perhaps the Attorney General is placing too much focus on traditional print media at the expense of tackling the more thorny issue of contempt and the internet.

Eloise le Santo is a research assistant at the Law Commission and will be commencing traineeship at Matrix in October 2012.